Hydrologic Time, Regulatory Distance, and Unsustainable Groundwater

Groundwater presents two problems within the water laws of the western United States: the problem of time and the problem of distance. Unsustainable water uses and supplies require a renewed focus on these two problems, too often obscured by both low political calculation and high technical expertise. This presentation focuses on these problems from a legal and historical perspective.

First, there is the problem of time, a problem rooted in both history and doctrine. Groundwater rights in the West generally share the same temporal characteristics as surface rights. To effect quick and certain administration during shortages, they have a certain temporal priority in relation to other rights. To promote beneficial use and orderly development, they entitle the owner to certain annual quantities of water, subject to that water being available according to annual variations in precipitation. And to protect investment and certainty of right, they usually enjoy the status of permanent, real property rights. Legally, and from a surface water perspective, these characteristics have historical foundations and make sense; within the context of non-renewable groundwater, they are too often misfits.  

Second, there is the problem of distance between the regulator and the regulated, a problem rooted in both power and the culture of the groundwater irrigation community. Some western states enjoy centralized control over groundwater, but that very power can provoke paralysis. Others leave control to local entities, but that deference can inhibit necessary action. The rest, most notably California and Texas, leave control entirely, inviting federal intervention. While these regulatory distances vary, groundwater levels continue to decline, largely because of the fraught relationship between power and distance.

Any successful effort to reduce groundwater declines must confront and account for the problems of time and distance. This presentation concludes with some suggestions for how to do so.